"Don't tell me it's not a problem," says Ohio Attorney General Mike DeWine, who says law enforcement needs to curb the freedom of predators and pimps to promote and advertise online.Plain Dealer file

WASHINGTON -- If you are on this website (obviously you are) and saying or doing something that could get you arrested or sued (let’s hope not), you might have troubles. But the operators of this and every other website in the United States might not, because they are generally protected from prosecution for your foolhardy or criminal offenses.

Attorneys general from most states, including Ohio’s Mike DeWine, say that needs to change. The federal law that protects websites might foster dialogue, commentary and commerce, but on some sites it also has fostered the promotion of online pimps who traffic in child prostitution, law enforcement authorities say.

“Don’t tell me it’s not a problem,” DeWine said. “We do have human trafficking and other bad things that are going on, clearly being promoted” through certain websites.

In a recent letter to congressional leaders, 47 state attorneys general (plus those from Guam and the Virgin Islands) said a section of the federal Communications Decency Act of 1996, or CDA, is interfering with their ability to bust child prostitution and sex-trafficking purveyors who promote their services with classified ads on the web. They asked for a federal amendment that could remove legal protections from any website, including those whose primary purpose is to provide news.

Civil libertarians, Internet privacy groups, law professors and even editors of newspapers and news websites say that’s going too far. They say that they agree with the goal of the attorneys general, but they told lawmakers in their own letter on July 30 that the proposed means of achieving it could make it impossible to have a free exchange of ideas online.

Even comments on innocuous stories and blogs could become problematic if Congress were to remove CDA protections, said the free-speech proponents’ letter, sent to Congress by a coalition of 23 trade associations, civil liberties and Internet groups and 19 law professors. Their letter said the amendment sought by the attorneys general could result in “invasive and censorial screening procedures” at websites, and prompt web hosts to avoid interactive features and user-generated content.

“It goes toward any sort of comments online, and you can interpret it that an organization will have liability for any sort of comments in terms of defamation, invasion of privacy,” Arnie Robbins, executive director of the American Society of News Editors, said in an interview. “ASNE and everybody is opposed to child sex trafficking and pornography, but I think that this proposal is so over-broad that we felt that we were not supportive of it.”

The National Association of Attorneys General notes the irony in this debate, saying in its July 23 letter to House and Senate commerce committee chairmen that the CDA “was intended to protect children from indecent material on the internet.” But the U.S. Supreme Court in 2007 ruled that the CDA’s attempt to curb internet pornography violated the First Amendment’s guarantee of free speech.

The court did not strike the entire law, however. Left intact, and argued over today, was Section 230, which said, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

“In other words,” explains the Electronic Frontier Foundation, “online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.”

This has created conflict between websites that feature classified advertising, such as Backpage.com, and state and local police and prosecutors. The websites, including Backpage, have prevailed in court on First Amendment and CDA grounds.

This is why on July 23, the National Association of Attorneys General wrote to the chairmen and ranking members of the Senate and House commerce committees on behalf of 47 state attorneys general, asking them to amend the CDA so it no longer shields “those who intentionally profit from prostitution and crimes against children.”

The association cited a 2012 Washington state case involving Backpage.com, in which a federal judge ruled that the CDA preempts state criminal law. Law enforcement authorities said they are frustrated, citing numerous investigations in which teenage prostitutes were victims of sex trafficking, held in the trade by violence and threats. In one example cited by the attorneys general, a man arrested by Miami police for advertising the services of a 13-year-old girl “had tattooed his name across the girl’s eyelids, marking her as his property.”

“As online advertising of child prostitution goes unchecked, sex traffickers are able to expand their businesses, magnifying the scope of the problem,” said the attorneys general letter.

The attorneys general asked Congress to amend the CDA to say that nothing in it shall be construed to impair the sections related to the exploitation of children -- “or any other federal or state criminal statute.”

That’s dangerously broad, say civil libertarians.

“I understand the motivation here,” said Aaron Perzanowski, an associate law professor at Case Western Reserve University and one of the signers of the July 30 letter. “Certainly cracking down on child prostitution is an important goal and one that’s really hard to argue with.

“The question is, what other forms of liability do you expose Craigslist, for example, to if you say that they are potentially liable for any violation of any criminal statute in any of the 50 states that is enabled or encouraged by this platform that they provide to the public. It’s a really difficult task to keep track of.”

The attorneys general amendment, he said, could subject any website in the United States to not only every federal statute but also to “tens of thousands of different criminal statutes across the 50 states, and the rules in Ohio might be different from the rules in California, which are different from the rules in New York.”

It could result, he said, in every website, no matter its home state, following the most restrictive speech laws of the single most restrictive state, and “the whole country is going to have to play by their rules.”

It is unclear how this will play out. Congress is on break until Sept. 9, when a limited schedule and pressure to deal with spending bills and avoid a government shutdown will dominate the agenda.

In their letter, the groups and professors opposing the amendment said, “We welcome discussion about the serious problem of sex trafficking, and stand ready to work together to find ways to specifically address the problem while preserving online innovation and free speech.”

But in their letter, the attorneys general said, “Federal enforcement alone has proven insufficient to stem the growth of internet-facilitated child sex trafficking. Those on the front lines of the battle against the sexual exploitation of children -- state and local law enforcement -- must be granted the authority to investigate and prosecute those who facilitate these horrible crimes.”

DeWine, a former member of both the House and Senate, suggested that a congressional hearing would help to clear the air.

“I’m very leery as an attorney general to tell Congress what to do,” he said. “I was there, and it’s not my job to tell Congress what to do. It is my job to point out a problem. And if the people who are criticizing the letter say that’s too broad, well fine. Let them come forward with a well-crafted compromise or well-crafted language that would deal with their problem.

“You don’t like my solution or you don’t like what we alluded to in the letter, that’s fine, come forward with your own solution,” DeWine said. “But don’t tell me it’s not a problem.”

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